Plaintiff John T. Mickle ("Mickle") brought this action
alleging that defendant Christie's, Inc. ("Christie's")
committed breach of contract, of fiduciary duties and of implied
duties of good faith and fair dealing, all in connection with
Christie's cancellation and rescission of the sale of a work of
art owned by Mickle and his sister, Diana J. Mickle
(collectively, the "Mickles"), and consigned to Christie's for
auction. Christie's, asserting that it rescinded the sale after
questions arose concerning the authenticity of the painting,
responded with counterclaims for fraud, misrepresentation and
declaratory relief, as well as with a motion requesting summary
judgment dismissing the complaint. For the reasons discussed
below, Christie's motion is GRANTED.

In early 1999, the Mickles, who assert that they have no
formal training in art, consigned to Christie's for auction a
painting they represented they co-owned, having inherited it
from their grandmother. The painting, known as "Billy Bowlegs"
("the Painting"), is an unsigned work, which the Mickles
attributed to the noted 19th century American painter, Carl
Wimar ("Wimar"). Christie's, in order to verify that the
Painting was by Wimar prior to entering into an auction
agreement with the Mickles, contacted by telephone Joseph D.
Ketner ("Ketner"), coauthor of a 1991 book on Wimar, entitled
Carl Wimar, Chronicler of the Missouri River Frontier, that
lists the Painting among Wimar's works. Christie's asserts that
on that occasion Ketner confirmed his attribution of the
Painting to Wimar.*fn2 Based on information provided by the
Mickles, Ketner's opinion and the assessments of its own staff,
Christie's concluded that the Painting was properly attributed
to Wimar.

On February 16, 1999, the Mickles entered into a Consignment
Agreement with Christie's for the auction sale of the Painting.
(Affidavit of Paul R. Provost, sworn to on February 19, 2002
("Provost Aff."), Ex. C.) Two provisions of that agreement are
central to the dispute at hand. Paragraph 8(b) states:

Non-Payment by Buyer. Christie's shall have no
obligation to enforce payment by the buyer. However,
in the event of non-payment by the buyer, Christie's
in our sole discretion, as Consignor's agent or on
our own behalf, may cancel the sale and return the
Property to Consignor, enforce payment by the buyer
or take any other actions permitted by law.
Christie's shall not, under any circumstances, be
liable for any consequential damages to Consignor as
a result of non-payment of the buyer.

Prior to an auction scheduled for May 26, 1999, Christie's
exhibited the Painting in its galleries and listed the work in
its catalogue in a lot entitled "Important American Paintings,
Drawings and Sculpture" ("the Catalogue"). (Provost Aff., Ex.
D.) The Catalogue attributed the work to Carl Wimar. (Id.) The
Catalogue also contained a section entitled "Conditions of Sale
and Limited Warranty" to which the artwork's consignment and
auction sale, pursuant to Paragraph 1 of the Consignment
Agreement, were subject. (Provost Aff., Ex. D.) The Limited
Warranty stated in part:

The buyer's sole and exclusive remedy against
Christie's and the consignor under this warranty
shall be rescission of the sale and refund of the
purchase price paid for the lot. . . . It is
Christie's general policy, and Christie's shall have
the right, to have the buyer obtain, at the buyer's
expense, the opinion of two recognized experts in the
field, mutually acceptable to Christie's and the
buyer, before Christie's determines whether to
rescind a sale under the above warranty. If the buyer
requests, Christie's will provide, the buyer with the
names of experts acceptable to it.

The auction was held on May 26, 1999. The highest bidder, for
a price of $750,000, was the Schwarz Gallery (the "Gallery").
Subsequent to the auction, the Gallery, allegedly based on
negative reports circulating among members of the trade raising
doubts about the attribution of the Painting to Wimar, refused
to make payment and requested that Christie's rescind the sale.
Christie's reaffirmed the attribution of the Painting to Wimar
and demanded payment. In letters dated July 1 and July 11, 1999
Christie's wrote that it stood by the attribution, and that the
negative hearsay the Gallery had reported did not constitute
grounds for rescission. Reminding the Gallery that the
transaction was subject to the Catalogue's Conditions of Sale,
Christie's noted that it would consider rescinding the sale only
if the Gallery followed those rules. The procedures required the
buyer to obtain the written opinions of two mutually acceptable
experts stating that the work was not that of Wimar.

The Gallery, however, continued to refuse to pay for the
Painting, which remained in Christie's custody. At that point,
Christie's again contacted Ketner by telephone in order to
confirm his attribution of the Painting. According to Christie's
account of the conversation, Ketner said that he was not then
confident of the attribution, although he had been sure of it at
the time he had written the Wimar book. When Christie's offered
to arrange a viewing of the Painting in order for him to confirm
his opinion, Ketner declined.*fn3

The Mickles assert that shortly after the sale Ketner also
spoke with Robert Schwarz, owner of the Gallery, and allegedly
said that, having consulted more than 20 persons on the matter,
he was "100% sure [the Painting] is a Wimar" and congratulated
Schwarz for having "bought one of the most important Wimar to
come on the market in recent years." (Pl.'s 56.1 Statement, at ¶
9.) The Mickles contend that Christie's was aware of this statement
by Ketner no less than one month before its rescission of the
sale.

The moving party bears the initial burden of establishing the
basis for the motion and identifying those portions of the
materials on the record that demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Koch
v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir.
2002). In this regard, "[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). In weighing whether the movant has satisfied
this threshold, the court must view the record as a whole in the
light most favorable to the opponent of the motion. See id. at
255, 106 S.Ct. 2505. The movant may meet this initial burden by
demonstrating the absence of evidence sufficient to support an
essential element of the opponent's underlying claim. See
LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998).

If the court finds that the moving party has satisfied his
initial burden of persuasion, the opponent must then demonstrate
the existence of a genuine issue of material fact. See Goenaga
v. March of Dimes, 51 F.3d 14, 18 (2d Cir. 1995). The opposing
party must also "do more than simply show that there is some
metaphysical doubt as to the material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). To this end, the opponent "may not
rely on conclusory allegations or unsubstantiated speculation."
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather,
he must support with specific evidence his assertion that a
genuine dispute as to material fact does exist. See Celotex,
477 U.S. at 324, 106 S.Ct. 2548; Goenaga, 51 F.3d at 18.

The opposing party's showing of a genuine dispute must be
grounded on concrete evidence sufficient to support a reasonable
jury's rendering a verdict in his favor. See Anderson, 477
U.S. at 248, 256, 106 S.Ct. 2505 ("The mere existence of a
scintilla of evidence in support of the [non-movant's] position
will be insufficient."); Matsushita, 475 U.S. at 587, 106
S.Ct. 1348.

Read as a whole, the parties' agreements here convey a purpose
that, where appropriate, Christie's rescission of a sale would
operate to protect Christie's business reputation from the
effects of its purveying fake art. That Christie's may exercise
the discretion exclusively "at any time" and at the cost of
forfeiting its commissions plainly evinces that this provision
overrides Christie's warranty obligations, as long as Christie's
demonstrates that it possessed an honest, but also subjective,
belief that it might be exposed to liability. Moreover, as
auctioneer, Christie's is legally bound, by contract and by law,
to multiple duties owed to different parties. It is obligated to
the buyer and generally to the public to sell genuine goods
fairly reflecting Christie's commercial representations. It also
must loyally execute transactions so as to promote the seller's
(and Christie's) interest in consummating the sale at the
highest possible price. In this connection, the broad rescission
provision permits Christie's to safeguard against liability not
only to itself, but to the seller in situations where, such as
occurred here, substantial doubts are raised by the buyer and
others about the authenticity of an item already sold. To this
extent, Christie's sole assessment of the risk of liability, and
its ability to act swiftly to undo a challenged sale,
potentially benefit both Christie's and its consignor, and thus
the discretion to rescind is consistent with the parties'
mutuality of interests. See Kohler, 80 F.3d at 1187;
Greenwood, 880 F. Supp. at 204.

Greenwood involved facts analogous to those present in the
instant matter and the application of a contract provision
identical to Paragraph 8(c) of the Consignment Agreement. See
Greenwood, 880 F. Supp. at 192. In Greenwood, following
Christie's auction sale of a work of art, the buyer raised
questions about its authenticity. As it did in the case at bar,
Christie's at first stood by its warranty of the authenticity of
the work. When the purchaser remained unsatisfied, Christie's
sought the opinion of an independent authority. The designated
expert declined to issue such authentication. Christie's then
rescinded the sale and returned the proceeds to the buyer.

The seller argued that despite the express provisions of its
consignment agreement with the seller and limited warranty of
provenance to the buyer, Christie's had a duty as the seller's
agent to refrain from actions adverse to the seller's interests,
such as seeking an independent expert's opinion after
consummation of the sale. The seller thus claimed, as the
Mickles assert here, that Christie's had breached the
consignment agreement and Christie's fiduciary duty of undivided
loyalty to the seller.

That is not to say, however, that every accusation of bad
faith is necessarily grounded in fact. It is easy to charge
dishonesty and bad faith; it is harder to prove it. Occasions do
arise when a purported legal claim is empty from the start, and
is lightly tossed into the wind on the strength of nothing more
than a hope and a prayer that some providential breeze may blow
it where intended and somehow make it stick. A party so maligned
should not be compelled to bear the attendant humiliation
compounded by expense, the harms enlarged by the burdens of
having to endure a trial in order to defend against and refute
the bare or fanciful allegation.

Our justice system has devised adjustments to mitigate the
potential injustices to which this prospect gives rise. The
summary judgment device, imperfect and cumbersome for this
purpose though it may be, offers one such modest recourse. The
procedure is warranted precisely where the action presents no
specific evidence demonstrating a genuine dispute regarding bad
faith, and where, on the facts presented, a reasonable jury
would not have sufficient grounds to infer bad faith and unfair
dealing, the record thereby compelling a verdict for the movant.
See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita,
475 U.S. at 587, 106 S.Ct. 1348; Greenwood, 880 F. Supp. at
202.

Here, to counter Christie's motion, the Mickles have offered
little more than the allegations and denials in their pleadings
augmented by conclusory arguments and unsubstantiated
speculation. This response is insufficient. See Anderson, 477
U.S. at 256, 106 S.Ct. 2505; Scotto, 143 F.3d at 114. The
sparse factual material the Mickles proffer in their efforts to
create a triable dispute concentrates on the extent of
Christie's knowledge of other authorities who had attributed the
Painting to Wimar; the museums and galleries which had exhibited
the work as a Wimar; and Christie's own representations in this
regard. Such evidence is not relevant here. For, the proper
inquiry before the Court is not whether or not the Painting was
truly executed by Wimar, nor the degree to which Christie's
reasonably believed and warranted that it was. Rather, the
pertinent question addresses whether, at the time it rescinded,
Christie's entertained an honest belief in potential liability
arising from the sale, and the adequacy of Christie's grounds to
claim it acted in good faith.

On the record before it, the Court finds no genuine issue of
fact in dispute concerning Christie's good faith, and concludes
that no reasonable trier of fact would render a verdict
determining that Christie's actions constituted bad faith and
unfair dealing.

The Court, finding that the Mickles have advanced no other
basis sufficient to defeat Christie's motion, concludes that
Christie's is entitled to the relief it seeks here.

E. COLLATERAL ESTOPPEL

The Court also finds that Christie's is entitled to summary
judgment by operation of the doctrine of collateral estoppel, or
issue preclusion. This principle "bars a party from relitigating
in a second proceeding an issue of fact or law that was
litigated and actually decided in a prior proceeding, if that
party had a full and fair opportunity to litigate the issue in
the prior proceeding and the decision of the issue was necessary
to support a valid and final judgment on the merits."
Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir. 1992);
see also Harris v. Dep't of Health, 202 F. Supp.2d 143, 160
(S.D.N.Y. Apr. 24, 2002); Halyalkar v. Bd. of Regents,
72 N.Y.2d 261, 532 N.Y.S.2d 85, 527 N.E.2d 1222, 1224 (1988).

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